r. 1937 w. schiller street - innocence...

36
No. 2-14-1059 IN THE APPELLATE COURT OF ILLINOIS SECOND JUDICIAL DISTRICT PEOPLE OF THE STATE OF ILLINOIS, ) ) Respondent-Appellee, ) Appeal from the Circuit Court ) of Winnebago County ) v. ) ) Honorable Joseph G. McGraw, ) Chief Judge presiding JOHN HORTON, ) ) No. 93 CF 1991 Petitioner· Appellant. ) ) BRIEF OF AMICUSCURIAE THE INNOCENCE NETWORK IN SUPPORT OF PETITIONER-APPELLANT Julia T. Rickert 1937 W. Schiller Street Chicago, Illinois 60622 [email protected] (312) 399-9234 Robert R. Stauffer Michael A Scodro KaraL. Kapp JENNER & BLOCK LLP 353 N. Clark Street Chicago, Illinois 60654 [email protected] (312) 222-9350 Counsel for Amicus Curiae The Innocence Network

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Page 1: R. 1937 W. Schiller Street - Innocence Networkinnocencenetwork.org/wp-content/uploads/Horton-John-v...Chicago, Illinois 60622 juliarickert@gmail.com (312) 399-9234 Robert R. Stauffer

No. 2-14-1059

IN THE APPELLATE COURT OF ILLINOIS SECOND JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS, ) )

Respondent-Appellee, ) Appeal from the Circuit Court ) of Winnebago County )

v. ) ) Honorable Joseph G. McGraw, ) Chief Judge presiding

JOHN HORTON, ) ) No. 93 CF 1991

Petitioner· Appellant. ) )

BRIEF OF AMICUSCURIAE THE INNOCENCE NETWORK IN SUPPORT OF PETITIONER-APPELLANT

Julia T. Rickert 1937 W. Schiller Street Chicago, Illinois 60622 [email protected] (312) 399-9234

Robert R. Stauffer Michael A Scodro KaraL. Kapp JENNER & BLOCK LLP 353 N. Clark Street Chicago, Illinois 60654 [email protected] (312) 222-9350

Counsel for Amicus Curiae The Innocence Network

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................... ii

INTEREST OF AMICUS CURIAE .......................................................... 1

SUMJ\.1ARY OF ARGUMENT ................................................................... 2

ARGUMENT ............. -................................................................................ 3

I. Well-recognized markers inform the reliability of a person's confession to a crime ........................................................................... 3

A. Several key factors inform the reliability of confession evidence .......................................................................................... 3

B. Numerous cases have involved third-party confessions that were later proven truthful. .................................................... 8

II. The English confessions contain key hallmarks of reliability, while Mr. Horton's confession does not ............................................. 9

III. Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability ..................................................................... 13

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TABLE OF AUTHORITIES

Page(s) CASES

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................................................ 8

Bruton v. United States, 391 U.S. 123 (1968) .......................................................................... 13, 14, 15

Chambers v. Mississippi, 410 U.S. 284 (1973) .................................................................................... 4, 5

Corley v. United States, 556 U.S. 303 (2009) .................................................................................... 3, 4

People v. Coleman, 2013 IL 113307 ............................................................................................. 13

OTHER AUTHORITIES

Innocence Network Releases Report on 2013 Exonerations, ava11able at http://www.innocenceproject.org/news ·events· exonerations/innocence·network-releases-report-on-2013-exonerations ................................................................................................... 1

Alexandra Natapoff, Comment: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U.L. REV. 107 (2006) ............................................................................................................. .'4

Brandon L. Garrett, Contaminated Confessions Revisited, 101 VA. L. REV. 395 (2015) .............................................................................................. 6

Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051 (2010) .............................................................................. 5, 6, 7, 16

Fred E. Inbau et al., Criminal Interrogations and Confessions, 340 (5th ed. 2013) .......................................................................................... 4, 6, 7

Gisli H. Gudjonsson, "Convicting the Innocent": False Confessions & Correcting Injustices, 46 New Eng. L. Rev. 689 (2012) ...................... passim

Jon B. Gould and Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J. CRIM. L. & CRIMINOLOGY 825 (2010) ............................................................... 3, 4, 5, 7, 8

11

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Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291 (2006) ......... 15, 17

Richard A. Leo & Richard J. Ofshe, Criminal Law: The Consequences of False Confessions: Deprivations of Liberty & Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998) .............................................................................. 14

Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. L. POL. & Soc'y 189 (1997) ............................ 4, 5, 6, 8

Saul M. Kassin and Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469 (1997) ......................................... 13

Saul M. Kassin, Why Confessions Trump Innocence, 67 AM. PSYCHOL.

431 (2012) ······································································· 13, 14, 15, 16, 17, 18

Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891 (2004) ........................... passim

111

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INTEREST OF AMICUS CURIAJ!J

The Innocence Network, Inc. (the "Network") is an affiliation of

organizations that provides pro bono legal and investigative services to

convicted individuals seeking to prove their innocence. The Network

currently has 65 member organizations representing hundreds of prisoners

with innocence claims in all 50 states and the District of Columbia, as well as

in countries around the world. The work and dedication of the Network's

member organizations has led to the exoneration of many wrongfully

convicted ·prisoners, 31 in 2013 alone.2 To date, the Network has helped

exonerate over 200 innocent persons, and the Network has served as counsel

in the majority of these cases. The Network also works to redress the causes

of wrongful convictions. Because false confessions often play a key role in

wrongful convictions, the Network has a strong interest in ensuring that

courts do not misapply eyidentiary rules in a manner that insulates such

confessions from rebuttal.

1 Amicus certifies that no counsel for a party authored this brief in whole or in part. No person or entity other than amicus and its counsel made any monetary contribution to the preparation or submission of this brief. 2 Innocence Network Releases Report on 2013 Exonerations, available at http://www.innocenceproject.org/news·events·exonerations/innocence· network·releases·report·on·2013·exonerations.

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SUMMARYOFARGUMENT

The Innocence Network submits this brief in support of Mr. Horton to

provide the Court with information on the indicia of reliability applicable to

confession evidence, and to highlight the importance of considering

exculpatory third·party confession evidence that has substantial indicia of

reliability.

As discussed below, confession evidence is not inevitably reliable: there

are true confessions and false confessions. Several well ·recognized markers

inform the reliability of a confession, including whether it was spontaneous,

repeated, and made without any promise of reward, or rather made during

police interrogation under psychologically coercive circumstances. Reliability

also turns on the degree to which the details of a confession are consistent

with known facts of the crime, and a confessor's susceptibility to making false

admissions. As these markers indicate, many reliable confessions can and do

arise outside the context of police interrogation-where there is a diminished

likelihood of coercive circumstances. As the cases discussed below

demonstrate, many third·party confessions have been proven to be true while

the defendant's admitted, psychologically coerced confession turned out to be

false.

In this case, Clifton English's confession contains many hallmarks of

reliability, while there is much to suggest that John Horton's confession is

unreliable. Where, as here, the prosecution's case rests entirely on credibility

assessments, and in light of the significant risk of confirmation bias inherent

2

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in convictions obtained primarily through confession evidence, it is important

to protect the ability to introduce exculpatory, third·party confession

evidence. The exclusion of such evidence is unconstitutional and unjust, for it

undermines an innocent defendant's ability to educate the jury with facts

needed to make a comprehensive credibility assessment and identify the real

culprit.

ARGUMENT

I. Well-recognized markers inform the reliability of a person's confession to a crime.

A. Several key factors inform the reliability of confession evidence.

Some confessions are true, and some are false. 3 Through careful

comparison of both types, scholars have identified several markers that tend

to indicate whether a confession is more or less reliable.

Voluntariness. One key indicator that a confession is reliable is that

the confessor made the inculpatory statement voluntarily, rather than as the

result of coercive interrogation. "The primary cause of police-induced false

confessions is the use of psychologically coercive police interrogation

methods."4 The Supreme Court has similarly recognized the "mounting

empirical evidence that theO pressures [of custodial police interrogation] can

3 See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post·DNA World, 82 N.C. L. REV. 891, 906·07 (2004) (study of 125 proven false confession exonerations from the post· Miranda era).

4 Jon B. Gould and Richard A. Leo, One Hundred Years Later: Wrongful Convictions after a Century of Research, 100 J. CRIM. L. & CRIMINOLOGY 825, 846 (2010).

3

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induce a frighteningly high percentage of people to confess to crimes they

never committed." Corley v. United States, 556 U.S. 303, 320-21 (2009)

(citation omitted). Psychologically coercive methods include prolonged

interrogation, for example interrogation sessions lasting more than six

hours, 5 involving deprivation of food, water, sleep, or access to restroom

facilities, suggestions or promises of leniency, promises that the suspect can

go home upon confessing, threats of harsher treatment absent a confession,

falsely informing the suspect that the police have inculpatory evidence

implicating the suspect, or refusing to accept a suspect's repeated denials of

culpability.6 The combined presence of multiple methods, in particular, can

result in a psychologically coercive atmosphere, which undermines the

reliability of a confession obtained in this manner.

Spontaneous, repeated, and without reward. A confession is more

reliable when it occurs freely, outside a police interrogation and without the

prospect of receiving any benefit in exchange for that admission. 7 The

5 Drizin & Leo, supra n.3, at 948.

6 Gould & Leo, supra n.4, at 846·47; Fred E. Inbau et al., Criminal Interrogation and Confessions, 340, 343-44, 347, 350-51 (5th ed. 2013).

7 Richard J. Of she & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. L. POL. & Soc'y 189, 204·05, 220 (1997); see also Chambers v. Mississippi, 410 U.S. 284, 300 (1973) (recognizing that spontaneity of confession provided assurance of reliability). Cf. Alexandra Natapoff, Comment: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U.L. REV. 107, 108-09 (2006) (explaining how prospect of receiving benefits can cause criminal informants to implicate others falsely).

4

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statement is even more reliable when the confessor repeats it to multiple

people. See Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973) (recognizing

fact that statement was repeated to multiple individuals as indicator of

reliability).

Det1111 and Consistency with Facts of the Crime. The quality of the

confessor's narrative provides an additional indicium of reliability.8 A

confession is more reliable if it describes facts unique to the crime that only

the confessor would know, and if it leads the police to uncover evidence of

these facts.9

The fact that the narrative of a suspect's confession is highly detailed

and contains facts consistent with the crime does not alone indicate that the

confession is reliable, however. In some cases "[p]olice detectives use the post-

admission phase of interrogation to influence, shape, and sometimes even

script the suspect's narrative. . . . Police detectives help create false

confessions in the post-admission narrative phase of interrogation by

pressuring the suspect to accept a particular account and suggesting crime

facts to him, thereby contaminating the suspect's post-admission narrative."10

Indeed, in many cases "exonerees [have been] reported to have provided

8 Ofshe & Leo, supra n.7, at 197-99, 217.

9 Id. at 238.

10 Gould & Leo, supra n.4, at 849; see also Gisli H. Gudjonsson, "Convicting the Innocent": False Confessions & Correcting Injustices, 46 NEW ENG. L. REV. 689, 690-91 (2012).

5

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detailed statements that included facts likely to be known only by the

culprit."11 A recent study found that "[a]ll but two of ... twenty·six [false]

confessions included crime scene details that supposedly were corroborated

by crime scene information that only investigators and the culprit could have

known." 12 This is the result of contamination-where the police "leakO and

feedO facts" to the suspect. 13

Accordingly, "[clrucial to assessing the reliability of the postadmission

narrative provided during an interrogation is analysis of what suspects say

when they are not prompted by law enforcement. An innocent person,

without prompting'' or prior contamination "should not be able to volunteer

specific crime information."14 Additionally, research shows that whether

statements made in the confessor's own words are unqualified (e.g. "I did"), or

hedged (e.g. "I probably did"), may indicate whether a confessor's statements

were fed by the police or volunteered by the confessor.15 Unqualified

statements made in the confessor's own words may provide some evidence of

11 Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV.

1051, 1066 (2010); Gudjonsson, supra n.10, at 690·91.

12 Brandon L. Garrett, Contaminated Confessions Revisited, 101 VA. L. REV.

395, 409, 402, 405·06 (2015).

13 Garrett, supra n.11, at 1066.

14 Id. at 1087. The corollary to this principle is that a reliable voluntary confession should not contain fictitious details that do not fit the actual crime. Inbau et al., supra n.6, at 349.

15 Ofshe & Leo, supra n.7, at 218.

6

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reliability, while hedged statements suggest that the confessor may not have

an independent recollection of the events.

Suggestibility. A final factor useful in assessing the reliability of an

inculpatory statement is the degree to which the speaker is suggestible or

compliant. "Individuals who are highly suggestible or compliant are more

likely to confess falsely." 16 Three well-recognized groups that are particularly

prone to suggestibility and compliance are juveniles, the intellectually

disabled, and the mentally ill, although fully competent adults may also have

personalities that render them more suggestible.17

Scholars and law enforcement recognize that juveniles are particularly

susceptible to confessing falsely. 18 "[J]uveniles may be more vulnerable to

police pressure during interrogations .... [because they] are, of course, less

mature than adults and have less life experience on which to draw. As a

result, they tend to be more naive and more easily intimidated by police

power, persuasion, or coercion."19 Juveniles "are thus less equipped to cope

with stressful police interrogation and less likely to possess the psychological

resources to resist the pressures of accusatorial police questioning."20

16 Gould & Leo, supra n.4, at 847. 17 Id. at 847-48.

18 Id.; see also Garrett, supra n.11, at 1064; Gudjonsson, supra n.10, at 700; Inbau et al., supra n.6, at 352.

19 Drizin & Leo, supra n.3, at 944.

20 Id.; see also id. at 968-69.

7

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Scholars similarly recognize the intellectually disabled and mentally ill

as two groups that are particularly vulnerable to confessing falsely. 21

Academics and jurists alike have recognized that "the mentally retarded

possess personality characteristics that increase their risk of interrogation-

induced false confession."22

B. Numerous cases have involved third-party confessions that were later proven truthful.

Third-party confessions have led to at least a dozen exonerations that

DNA evidence later verified. The specifics of these cases, summarized in the

Appendix, show that truthful third-party confessions are marked by the same

factors that characterize reliable confessions generally. Many of these

verified third-party confessions also share additional indicators of reliability.

These confessions are relevant to Petitioner's case because, as detailed in

Part II, many of their shared characteristics are found in the English

confession.

Some recognized hallmarks of reliability are common to all of the

verified third-party confessions. Each confession was apparently

spontaneous. Few if any came during a custodial interrogation. All of the

confessors were adults, and no available information hints that any of them

21 Drizin & Leo, supra n.3, at 919-20, 973-74; Gould & Leo, supra n.4, at 847; Gudjonsson, supra n.10, at 700; Ofshe & Leo, supra n.7, at 212-14.

22 Drizin & Leo, supra n.3, at 919; see also Atkins v. Virginia, 536 U.S. 304, 321 (2002) ("[m]entally retarded defendants in the aggregate face a special risk of wrongful execution").

8

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suffered from mental illness or disability. Nor is there any indication that

any received promises in advance of their confessions. And in all cases the

third·parties who truthfully confessed had been in a position to commit the

crimes in question, even if investigators did not realize it.

Many of the verified third ·party confessions exhibit additional

recognized markers of reliability. For example, both Milton Jackson and

Jerry Wayne Johnson confessed repeatedly over the course of several years,

while Matthew Brown, Mark Christie, Rondell Love, and Bobby Poole all

made their admissions to multiple people. Joseph Miller, who led

investigators to the landfill where the victim's body had been found, is an

example of someone who displayed special knowledge of the crime he

admitted committing. Achim Marino is another such example: He is reported

to have revealed where to find his victim's stolen belongings.

Finally, in at least three-quarters of the cases, the third·party who

confessed had committed other crimes of the same nature. Although these

other crimes often would qualify as propensity evidence, it provides a

powerful reason not to disregard the confessions.

IL The English confessions contain key hallmarks of reliability, while Mr. Horton's confession does not.

Clifton English has long claimed that he, rather than his cousin John

Horton, is guilty of the 1993 murder of a patron at the Charles Street

McDonald's in Rockford, Illinois, during the course of a robbery. Repetition is

9

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a hallmark of reliability, and English has confessed to this crime many times,

including:

• to at least four family members and his ex-wife sometime before John Horton's t~ial (R. 1268-69, 1289-92; C. 943);

• to John Horton's defense team in 1995 (R.1814-15; C. 886);

• in a 2006 letter to Paul Logli, former Winnebago County State's Attorney (C. 792);

• in a 2008 notarized statement to the Internal Affairs Division of Hill Correctional Center, in which he accurately described the victim as wearing a Hard Rock Cafe jacket (C. 789);

• to his psychiatrist at Hill Correctional Center, Dr. James E. Tiller, also in 2008 (C. 475-76);

• in a voluntary, detailed 2013 affidavit to Horton's attorneys (C. 414-21, 459-63).

English's confessions exhibit other hallmarks of reliability as well. He

confessed voluntarily and spontaneously, without threats or promises from

interrogators or other parties. He was an adult each time he confessed-he

was 24 at the time of the McDonald's murder and 44 at the time of his most

recent, detailed confession (C. 932, 967)-and there is no evidence that

mental infirmity of any kind prompted his confessions. And English's most

recent confession is exceptionally detailed and accurate, as shown by

contemporary reports and other evidence. Details in English's 2013 affidavit

include:

• the location and appearance of patrons (e.g., a "biker-looking

man," "old people sitting at the back," "a group of teenagers"

who ran out the east-side door) (C. 461);

10

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• an accurate description of the manager, including that she was

not in uniform but rather in plain clothes (C. 461);

• an accurate description of where the victim was shot (left side of

his face, near his eye) (C. 461);

• that he stole around $500 from the safe (C. 462);

• details of his escape (e.g., that he ran past the drive·thru lane

with his gun in one hand and a bag in the other and saw a white

woman in her car, an account that the woman who was in the

drive·thru lane confirms) (C. 462, 416); and

• a comprehensive and accurate map of the crime scene. (C. 468.)

English and his confessions share other significant characteristics with

the Appendix cases. Like at least three·quarters of the true perpetrators in

those cases, English has committed another crime similar to the one he

admits to in his confession in this case, another murder in the course of

robbing a restaurant. (English is currently imprisoned for that murder (C ..

967).) Moreover, like Mark Christie, whose third-party confession has been

verified, English was an early suspect in the McDonald's murder and gave

investigators a false alibi. (C. 926, 931.) And the confession of another of the

true perpetrators identified in the Appendix-Milton Jackson-undermines

any assumption that English's confession must be false simply because it

could help a member of his family. Jackson, following his brother Willie's

11

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conviction for rape, admitted that he, not his brother, had had sex with the

victim, an admission that DNA testing later verified.

In contrast to English's multiple confessions to the McDonald's

murder, John Horton's confession lacks key hallmarks of reliability. Far from

repeating his confession, Horton soon recanted it and has maintained his

innocence ever since. Additionally, Horton was a juvenile at the time of his

interrogation (C. 932) and therefore more likely to confess falsely. And

Horton was interrogated for at least six hours before he confessed (C. 940-46),

another indicator of unreliability.

Finally and crucially, Horton's confession was far less detailed than

English's confessions, and many of the details Horton did provide were

contradicted by witness accounts and evidence from the crime scene. For

example, Horton recounted dropping several items while fleeing the scene,

including a bandana, coat, shirt, and almost all of the stolen money. (C. 955.)

Yet police officers' thorough search of the crime scene and surrounding area

within half an hour of the crime turned up none of these things. (R. 924; C.

936.) Similarly, Horton told his interrogators that the shooting victim had

been dressed like a McDonald's employee when in reality the victim wore

street clothes, including a Hard Rock Cafe jacket, as English correctly

recounted. (C. 789, 954-55.) Horton's confession, moreover, includes almost no

other description of the people in the restaurant, whereas English describes

what both the victim and the manager were wearing, as well as the

12

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appearance of several other patrons in the restaurant. (Compare C. 954-55 to

C. 461, 789.) Unlike English's detailed, voluntary, repeated confessions, the

obvious inaccuracies in Horton's confession undermine the reliability of this

statement.

III. Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability.

The Court must determine the likely result of a retrial. People v.

Coleman, 2013 IL 113307, if97. In this case, the state presented no physical

or scientific evidence linking Mr. Horton to the crime, so the case hinged

entirely on whose version of events the trier of fact chose to credit. Yet, the

trier of fact learned of only one of the two, inconsistent versions of who

committed the crime. Without full information, the trier of fact cannot

perform its role properly.

Not only must a trier of fact have access to reliable third·party

confessions like English's to assess credibility, but such access is also

essential to offset the "confession effect." Confession evidence is exceedingly

persuasive to jurors.23 In fact, "[w]ith the exception of being captured during

23 Saul M. Kassin, Why Confessions Trump Innocence, 67 AM. PSYCHOL. 431, 433-34 (2012); Gudjonsson, supra, n.10, at 690 (noting that even when retracted, false confessions "still constitute very powerful factors that typically result in a conviction"); Saul M. Kassin and Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469, 469, 481 (1997) (finding that "confession evidence has a greater impact on jurors-and is seen as having a greater impact by jurors-than other potent types of evidence")(emphasis in original); see also Bruton v. United States, 391 U.S. 123, 139 (1968) (recognizing that a "defendant's own confession is probably

13

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the commission of a crime . . . a confession is the most incriminating and

persuasive evidence of guilt that the State can bring against a defendant."24

"Confession evidence (regardless of how it was obtained) is so biasing that

juries will convict on the basis of confession alone, even when no significant

or credible evidence confirms the disputed confession and considerable

significant and credible evidence disconfirms it."25 Confessions have more

impact on jury verdicts than do many other powerful forms of evidence, as

jurors do not adequately discount confession evidence-even when a

confession is retracted and shown to be the result of coercion. 26

For example, a study of proven false confessions elicited between 1971

and 2002 showed that roughly four out of five now·exonerated confessors who

went to trial were convicted, despite exonerating evidence that cast doubt on

their confessions.27 As the study's authors conclude, "in the overwhelming

majority of cases that go to trial, confessions (even if they are demonstrably

the most probative and damaging evidence that can be admitted against him").

24 Drizin & Leo, supra n.3, at 921. 25 Id. at 923. 26 Kassin, supra n.23, at 433-34; see also Drizin & Leo, supra n.3, at 961-62 ("[C]onfession evidence substantially biases the trier of fact's evaluation of the case in favor of the prosecution and conviction-exercising [a] profound and context-resistant impact on jurors."); Gudjonsson, supra n.10, at 690; Richard A. Leo & Richard J. Ofshe, Criminal Law: The Consequences of False Confessions: Deprivations of Liberty & Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 429-30 (1998).

27 Drizin & Leo, supra n.3, at 960-61; see also Kassin, supra n.23, at 435.

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false) almost always seal the defendant's fate ... commonly, by leading a

judge or jury to wrongfully convict the factually innocent defendant."28

There are several reasons why some triers of fact place undue weight

on even unreliable confession evidence: (1) the concept of false confessions is

counter-intuitive, meaning triers of fact often do not believe that they ever

would confess falsely and thus cannot fathom why anyone else would; (2)

false confessions are often highly detailed, giving them an appearance of

reliability that is often undeserved because the details were either generally

known or intentionally or inadvertently fed to the suspects by their

questioners; and (3) once a confession is believed, confirmation bias reinforces

the perception that it is true.29

The first factor, the apparent illogic of false confessions, gives

confession evidence credibility with judges and juries alike. "Most people

reasonably believe that they would never confess to a crime they did not

commit, so they evaluate others accordingly, do not understand the influence

of police interrogation practices, and have only a rudimentary understanding

28 Drizin & Leo, supra n.3,at 961.

29 Kassin, supra n.23, at 433·35, 437, 440 (noting that phenomenon of false confessions does not comport with layperson's common sense and that confessions trigger "confirmation processes" that bias interpretation of other evidence); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292·95 (2006); see also Bruton, 391 U.S. at 129 ("[Confession evidence] cannot be wiped from the brains of the jurors.") (quoting Delli Paoli v. United States, 352 U.S. 232, 247 (1957) (Frankfurter, J., dissenting)).

15

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of the dispositional and situational factors that would lead someone innocent

to confess."30

The confidence in confession evidence is particularly strong where, as

occurs in many false confessions, the confession contains vivid details of what

the suspect allegedly did.s1 Indeed, detailed "narrative confessions can be so

powerful as to overwhelm contradictory forensic evidence," including

exculpatory DNA evidence.32 But the level of detail in a suspect's confession is

not always an accurate barometer of its reliability. As Garrett explains, the

details in false confessions are often the product of police contamination-the

inadvertent leaking of facts to the suspect through the use of leading

questions, showing crime scene photos to suspects, taking them to visit crime

scenes, and other such procedures. Confession contamination leads some

innocent suspects to "offerO surprisingly rich, detailed, and accurate

information" about the crime and cloaks their confessions in an aura of

reliability that is undeserved. 33 Because judges and jurors "simply fail to

appropriately discount false confession evidence . . . [such] evidence is highly,

if not inherently, prejudicial to the fate of any innocent defendant in the

American criminal justice system."34

3° Kassin, supra n.23, at 434.

31 Id. at 436.

32 Id.

33 Garrett, supra n.11, at 1054; Gudjonsson, supra n.10, at 690-91.

34 Drizin & Leo, supra n.3, at 962.

16

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Once an individual believes confession evidence to be true,

confirmation bias kicks in, further strengthening a decision-maker's faith in

the veracity of the confession. Such confirmation bias can have a dramatic

impact on the police investigation phase and then infiltrate every stage of the

proceedings that follow, from the gathering of evidence to the disposition of

appeals.ao

With regard to the police investigation phase, as Kassin explains,

"[o]nce a suspect confesses, police often close the investigation, deem the case

solved, and overlook exculpatory information--even if the confession is

internally inconsistent, contradicted by external evidence, or the product of

coercive interrogation." (citations omitted.)3s This trust in the integrity of

confessions "may extend to prosecutors as well, some of whom express

skepticism about false confessions and ... refuse to admit the possibility of

their falsity even after DNA testing has unequivocally excluded the

confessor." (citation omitted.)31

A confession also may taint both expert and lay witness testimony,

leading to false corroboration of the confession. For example, polygraph and

fingerprint examiners are more likely to find markers of guilt in polygraph

results and inculpatory fingerprint evidence when the examiner has been told

35 See Kassin, supra n.23, at 437-440; see also Findley & Scott, supra n.29, at 295 (noting that "tunnel vision infects all phases of criminal proceedings").

36 Kassin, supra n.23, at 433; Drizin & Leo, supra n.3, at 921-22.

37 Kassin, supra n.23, at 433.

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that the suspect has confessed.as In addition, a majority of eyewitnesses who

previously implicated one individual will confidently change their

identification testimony after being told that another suspect confessed.ss It is

therefore not surprising that, in a study of documented cases of wrongful

conviction, 63% of wrongful convictions involving false confessions also

involved improper forensic science, 29% involved mistaken eyewitness

identifications, and 19% involved untruthful informants.4o Thus, as Kassin

explains, false "confessions can spawn other incriminating evidence, creating

an illusion of corroboration."41

Preliminary studies also suggest that confirmation bias can

surreptitiously sneak into the adversarial process, leading to higher instances

of ineffective lawyering by defense attorneys and of prosecutorial

misconduct. 42

There is a simple solution to these problems in this case. For the same

reason that jurors find inculpatory confessions particularly persuasive, the

evidence most capable of combating the biasing effect of inculpatory

38 Kassin, supra n.23, at 437.

39 Id.

40 Id

41 Id at 438.

42 Id at 438-39 (2012 archival analysis of first 273 DNA exoneration cases from Innocence Project files found that false confession cases were more likely to involve bad defense lawyering than nonconfession cases (9.09% versus 3.38%) and more likely to involve government misconduct (21.21 % versus 15.46%)). '

18

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confession evidence is reliable exculpatory third·party confession evidence.

Particularly in a case, such as Mr. Horton's, that turns entirely on credibility

assessments, to enable the trier of fact to evaluate the strength of an

inculpatory confession fairly, it is important to protect a defendant's ability to

introduce exculpatory third·party confession evidence that undermines the

prosecution's theory. Only in this way are defendants assured that they can

present a coherent and credible narrative of actual innocence to the trier of

fact. Therefore, Mr. Horton should have been granted leave to file a post·

conviction petition based upon evidence of Clifton English's highly-detailed,

accurate, and reliable exonerating confessions. English's confessions-

entirely exculpatory to Mr. Horton-contained multiple hallmarks of

reliability. Depriving Mr. Horton of the ability to present evidence of

English's repeated lone·wolf confessions made it impossible for Mr. Horton to

present a complete defense.

JULIA T. RICKERT 1937 W. Schiller Street Chicago, Illinois 60622 [email protected] (312) 399·9234

Respectfully submitted,

ROBERT R. STAUFFER MICHAEL A. SCODRO KARAL.KAPP JENNER & BLOCK, LLP 353 N. Clark Street Chicago, Illinois 60654 rs ta [email protected] (312) 222-9350

Counsel for Amicus Curiae The Innocence Network

19

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CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 345,

341(a) and (b). The length of this brief, excluding the pages containing the

Rule 341(d) cover, the Rule 341(h)(l) statement of points and authorities, the

Rule 341(c) certificate of compliance, and the certificate of service, is 19

pages.

~t<.S~/~ Robert R. Stauffer

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APPENDIX

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APPENDIX

CASES INVOLVING THIRD-PARTY CONFESSIONS THAT WERE LATER VERIFIED BY DNA TESTINGt

THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) (the true

perpetrator) Based on supposed Brown had been charged with know ledge of the crime murdering two women when fellow scene and unreliable inmates informed police that Brown was forensic evidence, Johnson claiming to have murdered Johnson's was convicted in Louisiana girlfriend as well. See State v. Johnson, in 1986 of murdering his 23 So.3d 878 (La. 2009). Prosecutors girlfriend. More than 20 suppressed this exculpatory evidence. years later, DNA testing showed that Matthew Despite not knowing of Brown's

Matthew Anthony Brown, who had previously confessions, Johnson's defense attorneys Brown Johnson confessed to the murder, called Brown to testify at Johnson's trial

was the true perpetrator. because one of the women Brown was The state dismissed the charged with murdering had been killed charges against Johnson in the same room as Johnson's while he awaited retrial. girlfriend. Brown invoked his right

against self-incrimination. Brown was later convicted of the two other murders, and in 2010 DNA testing proved that his confessions to the murder of Johnson's girlfriend were truthful.

t Except where noted, information is taken from the National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/about.aspx.

YEARS IN

PRISON

1986-2010

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S)

EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON

perpetrator) Sterling falsely confessed to Christie had been a suspect in the the 1988 beating death of a woman's murder but had given police a 74-year-old New York false alibi, which they accepted. After woman. Based on the Sterling's conviction but before his confession, a jury found him sentencing, Sterling's attorneys learned

Mark Christie Frank Sterling guilty of her murder. DNA that Christie had confessed to friends 1992-testing in 2006 proved that that he was the person who had killed 2010 the actual perpetrator was the victim. Sterling filed a motion to set Mark Christie, who had aside the guilty verdict, but the judge previously confessed to the did not credit Christie's admissions. crime. After the 2006 DNA testing tied Christie

to the crime, he again confessed. Cruz and Hernandez were Shortly after Cruz and Hernandez's first wrongfully convicted of trial, a serial killer, Brian Dugan, raping and murdering a 10- confessed to police that he had year-old Illinois girl based committed the rape and murder for on false testimony from which they had been convicted. Evidence

Rolando Cruz investigators. Following a of Dugan's guilt nonetheless was

Brian Dugan & Alejandro second re-trial in 1995, Cruz excluded from Cruz and Hernandez's 1985-

Hernandez was acquitted. The charges retrials. 1995 against Hernandez were then dismissed. DNA testing more than a decade after

Cruz and Hernandez's release proved that Dugan's confession had been truthful. He pleaded guilty in 2009 to that rape and murder.

2

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THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON

peroetrator) Willie Jackson was Days after Willie's conviction, Milton wrongfully convicted of rape confessed that it was he and not Willie in Louisiana in 1989 based who had sex with the victim on the night on mistaken eyewitness in question. (He claimed the sex was testimony and unreliable consensual.) Milton continued to admit forensic evidence. DNA to his involvement thereafter, including

Milton testing in 2006 proved that in an affidavit and by testifying at

Jackson Willie Jackson Willie's brother Milton, who Willie's habeas hearing. Jackson v. Day, 1989-had previously admitted to No. CIV.A.95-1224, 1996 WL 225021 2006 having sex with the victim, (E.D. La. May 2, 1996). was the actual perpetrator. Willie was granted a new Milton was serving a life sentence for trial, and the state then another rape by the time DNA testing dropped all charges against proved that he was indeed the person him. who had had sex with Willie's supposed

victim.

3

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN

(the true PRISON peroetrator)

Based on mistaken Johnson, a Texas prisoner serving life eyewitness testimony, Cole sentences for multiple sexual assaults, was wrongfully convicted in sent letters in 1995 to judges and a 1986 of rape. He died in prosecutor, confessing to the crime for prison in 1999. DNA testing which Cole had been convicted. These in 2008 posthumously letters were ignored.

Jerry Wayne Timothy Brian cleared him of the crime and 1986-Johnson Cole implicated Jerry Wayne After Cole's death, Johnson again 2009

Johnson, who had confessed in a letter to a judge. This previously confessed to the time Cole's family and the Innocence crime. Project of Texas learned of the

confession and sought DNA testing, which confirmed that Johnson's confessions were truthful.

4

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S)

IN (the true PRISON

peroetrator) Based on mistaken Not long after the conviction of Hayes eyewitness testimony and and Matthews, Love, who was in prison Hayes' s false confession, 1 7- for another murder, confessed to fellow year-old Hayes and inmates that he had also committed the Matthews were wrongfully murder for which Hayes and Matthews 1998-convicted of murdering a had been convicted. The confession

2007 store clerk. Both boys prompted attorneys for Matthews to (Hayes)

Travis Hayes & suffered from intellectual investigate Love. DNA testing

Rondell Love deficits. ultimately proved that Love's confession Ryan Matthews had been truthful.

1999-2004

DNA testing ultimately (Matt he proved that the true ws) perpetrator was Rondell Love, who had previously confessed to the crime. Hayes and Matthews were eventually cleared.

5

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THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) IN (the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON

peroetrator) Danziger and Ochoa were Marino, who was serving a life sentence wrongfully convicted in for a series of aggravated robberies, Texas in 1990 of raping and confessed in a 1998 letter to Texas Gov. murdering a restaurant George W. Bush that he had committed employee. Ochoa had the crimes for which Danziger and 1990-pleaded guilty after falsely Ochoa had been convicted. Marino's 2002

Richard confessing and then falsely letter reportedly described the location (Danzig Achim Josef Danziger & testified against Danziger. of the victim's stolen belongings. Jim er) Marino Christopher Yardley, Texas Inmate's Confession

Ochoa The pair were released after Slips Through the Cracks, NY Times 1989-DNA testing proved that the (Oct. 17, 2000). 2002 real perpetrator was Achim (Ochoa) Marino, who had previously DNA testing in 2000 confirmed the confessed to the rape and truthfulness of Marino's confession and murder. ultimately led to the release of Danziger

and Ochoa.

6

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S) IN

(the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON

peroetrator) William Kelly, who suffers In 1992, Miller, who had been charged from mental illness, falsely with multiple murders similar to the one confessed to killing a young in Kelly's case, led prosecutors to the woman in Pennsylvania in landfill where the body of Kelly's 1990 and pleaded guilty to supposed victim had been found. Two

Joseph D. William M. the crime. Two years later, other bodies were discovered there. 1990-Miller Kelly, Jr. DNA testing proved that the Miller then confessed to killing the 1993

true perpetrator was Joseph victim in Kelly's case, prompting DNA Miller, who earlier had testing. The testing proved Miller's confessed. Prosecutors confession to be truthful. moved to vacate Kelly's conviction.

7

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THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) IN (the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON

perpetrator) Cotton was convicted of rape Poole happened to be incarcerated in the in 1985 in North Carolina same wing of the same prison as Cotton. based on mistaken Poole told numerous inmates that he eyewitness testimony .1 He was responsible for the rape that Cotton was granted a retrial in had allegedly committed. After DNA 1987 because exculpatory testing confirmed that Poole's evidence had been admissions were truthful, he pleaded improperly excluded from guilty to that rape. He was also his trial. The evidence was convicted of raping a second woman the that two other women had same night. been assaulted in a similar

1985, Bobby Poole Ronald Cotton

manner as his supposed 1987-

victim on the same night 1995

and in the same area, but one of the victims had identified another man as the perpetrator. State v. Cotton, 351S.E.2d277 (N.C. 1987). Cotton was convicted on retrial, but DNA testing in 1995 showed that the true perpetrator was Bobby Poole, who had previously confessed to the crime.

1 See Jennifer Thompson, 'I Was Certain, but I Was Wrong,' NY Times (June 18, 2000), available at www.nytimes.com/2000/06/18/opinion/i· was·certain·but-i·was·wrong.html.

8

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THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS

CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON

perpetrator) Five teenagers-McCray, Reyes was already a convicted rapist Richardson, Salaam, and murderer when he confessed to Santana, and Wise-falsely having attacked the Central Park jogger. confessed to the brutal 1989 His confession prompted DNA testing, rape of a jogger in Central which proved the confession to be

Antron Park. They were convicted truthful.

McCray, Kevin based on those confessions. The victim, who suffered a

Richardson, severe head injury, had no 1990-Matias Reyes Yusef Salaam,

memory of the attack. 2002 Raymond Santana &

DNA testing in 2002 proved

Korey Wise that the rapist was actually Matias Reyes, who had previously confessed to the crime. The convictions of the young men were overturned on the recommendation of the district attorney.

9

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S) IN

(the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON

peroetrator) Brown was convicted of a Rickard was in the same prison as 2001 robbery in Brown when a fellow inmate reported to Pennsylvania based on Brown that he had overheard Rickard mistaken eyewitness confessing to the robbery for which testimony. DNA testing Brown had been convicted. DNA testing

Robert eventually tied the crime to confirmed that Rickard's admissions 2002-Rickard Patrick Brown Rickard, who had previously were true. He could not be charged, 2010

confessed. Brown v. Chardo, however, because the statute of No. 1:11-CV-0638, 2013 WL limitations had run. 4082701 (M.D. Pa. Aug. 13, 2013). Brown was granted a new trial, and then the charges were dismissed.

10

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THIRD PARTY

FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S)

EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON

perpetrator) Kagonyera falsely confessed Rutherford confessed to a federal agent in 2001 to committing a in 2003 that he had committed the murder in the course of a murder to which Kagonyera and robbery. He also implicated Wilcoxson had pleaded guilty. He Wilcoxson, and the two then explained to the agent that he had pleaded guilty to second- committed the crime along with two degree murder in order to other men: Bradford Summey and Lacy

2001-avoid a possible death Pickens. Subsequent DNA testing linked

2011 sentence. Sumney to the crime, corroborating

(Kagony Kenneth

Rutherford's confession. era) The North Carolina

Robert Kagonyera & Innocence Inquiry

Rutherford Robert 2002-Wilcoxson

Commission began 2011 investigating the case in (Wilcoxs 2011 and determined that on) DNA evidence and surveillance video implicated three other men, one of whom had earlier confessed. A panel of three judges declared Kagonyera and Wilcoxson innocent later that year.

11